Foreign domestic helpers in Hong Kong

Advertising for agency specialised in foreign domestic helpers in North Point, Hong Kong

Foreign domestic helpers in Hong Kong (Chinese: 香港外籍家庭傭工) are foreign domestic workers and housemaids employed by Hongkongers, typically families. They make up approximately 3% of the population of Hong Kong and an overwhelming majority of them are women. In 2010, there were 284,901 foreign domestic helpers in territory, of which 48% were from the Philippines, 49.4% from Indonesia, and 1.3% from Thailand. They usually live in their employer's residence and perform various household duties such as cooking, serving, cleaning, dish-washing, and childcare.

Since October 2003, the employment of helpers has been subject to the Employees' Retraining Levy totalling HK$9,600 for the duration of a two-year contract. It is unpopular with employers and helpers alike and there have been repeated calls for its abolition. Controversy resulted from "official muddle and civil-service clumsiness"[this quote needs a citation] of a two-year waiver of the levy announced by Chief ExecutiveSir Donald Tsang on 16 July 2008. The administrative errors were denounced by the newspaper editorials of all allegiances.

There is a debate regarding whether foreign workers should be able to apply for Hong Kong residency. Some people argue Hong Kong does not have sufficient resources to accept another 300,000 new immigrants as Hong Kong is an over-crowded city with 6,544 people per km2[1] and already has many underprivileged people.[2]

In Hong Kong Cantonese, the term 女傭 (maid) and 外傭 (foreign servant) are a neutral and socially acceptable term for foreign domestic helpers. However, the term fei yung (菲傭, Filipino servant) used to refer to foreign domestic helpers regardless of their origin at a time when most foreign domestic helpers came from the Philippines. The slang term bun mui (賓妹, 'pinoy girl) is used widely by the locals.[3]

In Chinese-language government documentation, foreign domestic helpers are referred to as 家庭傭工, translated as "domestic workers", that are either "of foreign nationalities" (as in 外籍家庭傭工[4]) or "recruited from abroad" (as in 外地區聘用家庭傭工[5]). The government uses wording with the same meanings in English-language documentation, but it specifically uses the term "domestic helper" instead of "domestic worker".[6][7]

This trend of increasing labour export in the Philippines was to coincide with the economic rise of Hong Kong in the late 1970s and early 1980s. When the People's Republic of China implemented wide-reaching economic reforms in the late 1970s and initiated trade with other countries,[10] Hong Kong became mainland China's biggest investor.[11] Labour-intensive industries in Hong Kong moved to the mainland, and high profit service industries such as design, marketing, and finance in the territory expanded dramatically. To deal with the resulting labour shortage and increase in labour costs, the female labour force was mobilised. Consequently, families with two incomes sought help to manage their households, creating demand for domestic workers. Hong Kong families began hiring foreign domestic helpers from the Philippines, with the number of them hired steadily increasing through the 1980s and the 1990s.[11]

Until the 1990s, foreign domestic helpers mostly came from the Philippines; since then, to cope with the different demands of prospective employers, the percentages have been shifting away from Philippine helpers, in favour of Indonesian and other nationalities. In the 1990s, Indonesia and Thailand followed the Philippines' model of labour export in order to deal with an increasing economic crisis and Hong Kong families began hiring foreign domestic helpers from these two countries as well.[11] In 1998, according to the Immigration Department, there were 140,357 Filipino domestic workers in Hong Kong compared to 31,762 from Indonesia.[12] In 2005, official figures showed there were 223,394 foreign domestic helpers in the territory; 53.11% were from the Philippines, 43.15% from Indonesia, and 2.05% from Thailand.[13] In 2010, the respective numbers were 136,723 from the Philippines (48%), 140,720 from Indonesia (49.4%), 3,744 from Thailand (1.3%), 893 Sri Lankans, 568 Nepalese, and 2,253 of other nationalities. Vietnamese are not permitted to work in Hong Kong as domestic helpers due to what authorities say are "security reasons", which one lawmaker said were linked to historical problems with Vietnamese refugees[12]

A sample of the first page of a standard employment contract for a foreign domestic helper

The Hong Kong government has drawn up rules and regulations specifically regarding the employment, labour, and condition of stay of foreign domestic helpers. An employer and an employee are required to enter into a two-year standard contract specifically for the employment of foreign domestic helpers.[7] A few notable regulations regarding the employment of foreign domestic helpers include:[14]

Employers' requirements and obligations

a household income of at least HK$15,000 (US$1,920) per month for each foreign domestic helper employed;

a levy of HK$9,600 for employing a foreign domestic helper, for the duration of a 2-year contract;[14]

provide free medical treatment for the foreign domestic helper;

payment of a monthly salary of no less than the minimum allowable wage set by the government.

Helpers' rights and obligations

required to only perform the domestic duties outlined in the employment contract.

not allowed or required to take up any other employment with any other employer during the effective period of the contract;[14]

required to work and live in the employer's place of residence, and to be provided with suitable living accommodation with reasonable privacy;[14]

entitled to one "rest day" every week, with the rest day being a continuous period of not less than 24 hours.[14]

Foreign domestic helpers' wages are subject to a statutory minimum, the breach of which is sanctionable under the Employment Ordinance. An employer convicted of paying below the "minimum allowable wage" (MAW) is liable to a maximum fine of HK$350,000 and three years' imprisonment.[15]

Helpers' minimum wages are inflation-adjusted annually for contracts about to be signed, and apply for the duration of the contract. Notably, they were reduced by HK$190 (5%) in 1999.[16] Again in April 2003, in a deflationary environment, the Government announced a HK$400 reduction in pay, to HK$3,270, "due to the steady drop in a basket of economic indicators since 1999."[17] The minimum allowable wage was raised by HK$80 to HK$3,480 per month for contracts signed on or after 6 June 2007.[18] Another HK$100 cost of living adjustment took effect for all employment contracts signed on or after 10 July 2008, increasing the minimum wage to HK$3,580 per month.[15] The minimum allowable wage has been set to HK$3,740 per month since 2 June 2011,[19] and the applicable MAW is HK$3,920 per month for contracts signed from 20 September 2012 onwards.[20]

In October 2003, the Hong Kong government imposed a HK$400 monthly Employees' Retraining Levy for hiring a foreign domestic helper under the Employees Retraining Ordinance when the economy was in a recession. The levy was initiated by the Liberal Party in 2002 as one means of tackling the fiscal deficit.[21] It was unveiled by Donald Tsang while he was Chief Secretary for Administration as part of population policy.[22] Tsang declared on one hand that foreign and local domestic workers were two distinct markets, yet he declared that "employers of foreign domestic helpers should play a role in helping Hong Kong in... upgrading the local workforce."[23]

Government Policy Support & Strategic Planning said the levy would be used for the training and retraining of the local workforce, to enhance their employment opportunities.[17] The government said the extension of the levy to include domestic helpers would remove the disparity between imported workers.[24]The Standard said that some sections hoped that fewer foreign maids would be employed in Hong Kong as a result. The senate of the Philippines disagreed with the government, denounced the levy as "discriminatory", and hinted that it would take the issue to the International Labour Organisation. Senate president Franklin Drilon said that levy on domestic workers went against Hong Kong's free-market principles and would damage its reputation for openness to foreign trade, investment and services.[25]

Earlier that year, the minimum wage for foreign domestic helpers was lowered by the same amount, although the government said the reduction in the minimum wage and imposition of the levy at the same time were "unrelated".[17] Lawyers representing the government said that the moves were an "unfortunate coincidence".[21] The measure was expected to bring in HK$150 million annually into government coffers. Government Policy Support & Strategic Planning said the levy would be used for the training and retraining of the local workforce, to enhance their employment opportunities.[17]

Thousands of helpers protested against measures, who feared the financial burden would be passed on to helpers.[16] The government defended the measures as necessary to adjust to Hong Kong's economic woes, and stated that even with the measures, foreign domestic helpers in Hong Kong were still better paid than foreign domestic helpers working in other Asian countries. James Tien said the monthly wage of Filipina maids in Singapore was about HK$1,400, in Malaysia it was HK$1,130.[21]

In 2004, a legal challenge was mounted asserting that the levy imposed on employers was unlawful and constituted a discriminatory tax. In January 2005, High Court Justice Michael Hartmann ruled that since the levy was instituted under a statutory scheme, it was not a tax but a fee charged for the privilege of employing non-local workers who would not otherwise have permission to work in Hong Kong.[26] In 2007, the Liberal Party urged the government to abolish the employees retraining levy as a part of its District Councils election platform, saying that the HK$3.26 billion fund should be used as originally intended: in other words, to train and retrain employees.[27]

In August 2008, regular South China Morning Post columnist Chris Yeung noted that the case for retaining the levy over the years has become increasingly weak morally and financially: "Middle class people feel a sense of injustice about the levy."[2]Regina Ip agreed that the levy had lost its raison d'être.[28]

As part of the "extraordinary measures for extraordinary times" totalling HK$11 billion announced by Donald Tsang on 16 July 2008,[2] the levy would be temporarily waived,[29] at an estimated cost of HK$2 billion.[2] The measures were mockingly referred to in the Chinese press as 派糖—handing out candy.[30]

It was announced that the levy would be waived for a two-year period on all helpers' employment contracts signed on or after 1 September 2008, and would not apply to ongoing contracts. The Immigration Department said it would not reimburse levies, which are prepaid half-yearly. The announcement resulted in chaos and confusion, and uncertainty for the helpers.[31] Chris Yeung said that the exemption was a "gimmick dressed up as an economic relief initiative, designed to boost the administration's popularity"[2] in advance of Tsang's forthcoming policy address, in October.[23]

Maids' representatives said that when the waiver was announced, the guidelines were unclear and had no implementation date. Employers deferred contracts or had dismissed helpers pending confirmation of the effective date, leaving helpers in limbo. They protested about the uncertainty, and also demanded an increase in their minimum wage to HK$4,000.[32] Employers had reportedly started terminating their helpers' contracts, sparking fears of mass-terminations. On 20 July, Secretary for Labour and WelfareMatthew Cheung announced the waiver commencement date would be brought forward by one month. The Immigration Department had also temporary relaxed its 14-day re-employment requirement for helpers whose contracts expired.[33]

On 30 July, the Executive Council approved the suspension of the levy for two years from 1 August 2008 to 31 July 2010. After widespread criticism of the situation, the government said maids having advanced renewal of contract would not be required to leave Hong Kong through the discretion exercised by the Director of Immigration, and employers would benefit from the waiver simply by renewing the contract within the two-year period. The government also admitted that some employers could benefit from the waiver for up to 4 years.[34] This effect of turning a 2-year moratorium into 4-year suspension potentially doubles the estimated give-away, and was denounced by the newspaper editorials of all allegiances.[2] The levy was criticised as "farcical" in an editorial in the South China Morning Post.[35] Stephen Vines wrote that "the plan for a two-year suspension of the levy... provides an almost perfect example of government dysfunction and arrogance,"[36] while Albert Cheng said the controversy exposed "worst side of our government bureaucracy"[37] Columnist Frank Ching criticised senior officials for living in their ivory towers, and said that there would have been no disruption if the government had suspended payment immediately and refunded those who had prepaid.[23]Hong Kong Human Rights Monitor called for the levy's permanent abolition, saying that the temporary two-year waiver was discriminatory. It criticised the confusion and inconvenience caused to employers and the Immigration Department because the policy had not been thought through properly.[38]

On the morning of 1 August, the Immigration Department gave out 2,180 passes to helpers and agents to collect their visas and submit applications to work in Hong Kong, and undertook to handle all applications submitted. Offices opened one hour earlier than usual, added staff and extended its office hours, to guarantee all 2,180 cases would be processed.[39] Similarly, the Philippine consulate expected to cope with a huge workload as a result of the rehiring provisions.[40] Chinese newspapers published articles calculating how households could maximise their benefits under the waiver rules. There were street protests on 3 August decrying the waiver's unfairness and its administrative burden on the Immigration Department. One protester said that the waiver would only teach households how to use legal loopholes.[28]

The West Kowloon Immigration office in Yau Ma Tei processed 5,000 advance contract renewals, in addition to 7,400 contract renewals during the month of August 2008. Despite the availability of online booking for slots at its 5 branch offices, the daily quota imposed on the number of applications being processed have resulted in daily overnight queues. Touts in Yau Ma Tei have been illegally selling positions in the waiting line for up to HK$120.[41]

The government is required to move an amendment in the Legislative Council (LegCo) to suspend the levy in accordance with the Executive Council decision. Faced with calls to abolish the levy, the government was adamant that the levy would not be scrapped. The Secretary for Labour and Welfare said the HK$5 billion fund would only support the work of the Employment Retraining Board for four to five years if the levy was permanently waived.[42]

Regina Ip has started a campaign to abolish the levy and tabled an amendment at LegCo. The government has declared it would attempt to rule it out of order on the grounds that it would breach rule 31(1) of the Rules of Procedures, which prohibit amendments which have an impact on government revenue.[43] Ip challenged the inconsistency of this stance with the 2005 decision in the High Court that the ERL was not a tax. The government also hinted that a bill to abolish would breach Article 74 of the Hong Kong Basic Law,[44] and threatened it would take Article 74 to the central government for interpretation. Legislators and commentators said this was a 'nuclear bomb'. A Hong Kong University academic said that reinterpretation would be "totally disproportionate... route to resolve this dispute."[45]

Under pressure from legislators, the government, through the Executive Council, agreed to extend suspension of the levy from two to five years. The amendment for the five-year suspension, one of several proposed amendments to the Employees Retraining Ordinance Notice 2008, was tabled by the DAB, and would apply to first-time and renewed contracts and visas issued between 1 August 2008 and 31 July 2013.[46]

In the year 2011, there were debates that foreign workers can apply for Hong Kong residency, as there are already one million underprivileged families who live under the poverty line in Hong Kong society, some political parties argue Hong Kong does not have sufficient welfare funding to support the 300,000 foreign workers if they can settle in Hong Kong and apply for public housing and social welfare benefits. Foreign domestic helpers and their supporters, including activists and employers alike, periodically stage protests against what they perceive to be discriminatory treatment on the part of the Hong Kong government. Major grievances include discrimination, the minimum wage, and the two-week stay limit at the end of a domestic helper's employment contract. According to the Hong Kong Human Rights Monitor (HKHRM), foreign domestic helpers face discrimination from both the Hong Kong government and their employers.[47]

The government requires foreign domestic helpers to leave Hong Kong within two weeks of the termination of their employment contract unless they find employment with another employer.[14] The HKHRM claimed that this is a form of discrimination against foreign domestic helpers, who are almost all Southeast Asian, as the same limitation is not enforced for other foreign workers.[47] This two-week rule has been condemned by two United Nations Committees: the Committee on the Convention on the Elimination of All Forms of Discrimination, and the Committee on Economic, Social and Cultural Rights.[48]

Under the Immigration Ordinance, a foreigner may be eligible to apply for permanent residency after having "ordinarily resided" in Hong Kong for seven continuous years, and thus enjoy the right of abode in Hong Kong.[49] However, the definition of "ordinary residency" excludes, amongst other groups, those who had resided in the territory as foreign domestic helpers,[50] thus effectively denying them the rights of permanent residents, including the right to vote, even if they had resided in Hong Kong for many years.[47] Specifically, since 1997, section 2(4) of the Immigration Ordinance states that "a person shall not be treated as ordinarily resident in Hong Kong while employed as a domestic helper who is from outside Hong Kong",[51] In 2011, the Court of First Instance found in Vallejos v. Commissioner of Registration that this definition of "ordinarily resident" contravened Article 24 of the Basic Law. The latter stipulates that "Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region". This gave rise to early speculation that helpers could gain right of abode.[52] An appeal was launched to the Court of Appeal of the High Court which overturned the judgment of the Court of First Instance. The plaintiffs subsequently launched an appeal to the Court of Final Appeal which ruled against them by a unanimous judgment.

The possibility of deportation may prevent foreign domestic helpers from reporting violations of their rights or instances of discrimination against them, and the two-week period may not be enough time for them to find new employment.[47] Those who do are deterred by the length of the legal process – cases take up to 15 months to reach the District Court or Labour Tribunal during which time they are not allowed to work.[48] The HKHRM also reports that helpers had been mistreated by their employers: out of 2,500 interviewed, at least 25% had claimed to have experienced violations of their contract, including being paid under the minimum allowable wage amount, not being allowed their mandatory weekly day of rest, and not being allowed to take their statutory holidays. Also, more than 25% had experienced physical and verbal abuse, including a "significant incidence" of sexual abuses.[47]Caritas said that their Asian Migrant Worker Social Service Project helpline received over four thousand calls from helpers, of which 53 were given assistance to stay in Hong Kong to pursue their claims.[48][53][54][55]

In January 2014 an Indonesian maid, Erwiana Sulistyaningsih, registered a complaint of abuse against her employer which left her unable to walk and in critical condition.[56]

Filipino foreign domestic helpers have also protested against policies of the Philippine government that targeted overseas Filipino workers. In particular, one protest in 1982 was held in opposition of Executive Order No. 857 (EO-857), implemented by dictator Ferdinand Marcos. EO-857 stipulated that overseas contract workers must remit 50% to 70% of their total earnings, and remittances were only allowed to be transferred through authorised government channels.[57]

As recently as February 2007, Filipino foreign domestic helpers have protested against a proposal by the Philippine government that they be required to undergo a "competency training and assessment program" that would cost them P10,000 to P15,000 (US$215 to US$320) -- about half of their average monthly salary (typically US$450). The Philippine Department of Labor and Employment defended the proposal, stating that the policy would help protect domestic overseas workers from abuse by their employers.[58]